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TMI Blog2016 (10) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ing agreed before the Assessing Officer to a certain disallowance, cannot challenge the order by way of revision and is, therefore, must be turned down. Thus impugned order passed by the Commissioner is set aside. The disallowance of 20% of the CMRE benefit and 100% of the uniform allowance made in case of the petitioner by the Assessing Officer is reversed. The Assessing Officer shall pass a consequential order giving effect to this judgment. The petition is disposed of. X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case has merely followed such order. 5. It is this order that the petitioner has challenged in the present petition. Learned counsel for the petitioner submitted that once the ONGC had paid fringe benefit tax, the amount would not be taxable in the hands of the petitioner. The Revenue has not questioned the ONGC treating such benefit as a fringe benefit. Drawing our attention to the statutory provisions of the circulars of CBDT, counsel submitted that the tax under FBT regime would exclude taxation under the normal provisions in the hands of the employees. 6. Our attention was drawn to various decisions rendered by this Court in case of ONGC where, in relation to similar payments, the Court had held that ONGC was not required to deduct tax at source since the amount in question did not form salary of the employee. 7. On the other hand, learned counsel Shri Parikh for the Revenue opposed the petition contending that the assessee had agreed before the Assessing Officer for disallowance. The assessee therefore could not have taken a different stand before the Commissioner. In any case, whether the perquisite in question was fringe benefit or not was never examined by any Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be paid by the employer even if otherwise not liable to pay tax on the basis of normal computation of his income. The FBT is therefore, referred to as a surrogate tax. 10. Section 17 of the Act defines the term salary, perquisite etc. Subsection (2) of section 17 which defines the term 'perquisite' is worded in inclusive fashion. Clause (vi) thereof prior to 01.04.2006 read as under: "(vi) the value of any other fringe benefit or amenity as may be prescribed." With the introduction of the FBT under chapter XIIH, this clause( vi) of subsection (2) of section 17 was amended with effect from 01.04.2006 and read as under: (vi) the value of any other fringe benefit or amenity (excluding the fringe benefits chargeable to tax under Chapter XIIH) as may be prescribed. 11. We may notice that with dismantling of the FBT regime, relevant portion of subsection (2) of section 17 has undergone a change. Clause( vi) thereof is replaced by clauses (vi), (vii) and (viii) with effect from 01.04.2010. Clause( viii) in the present form reads as under: "(viii) the value of any other fringe benefit or amenity as may be prescribed." 12. It can thus be seen that before and after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, held that the ONGC was required to deduct tax at source which it failed to do and therefore, disallowed the entire expenditure. This issue was carried in appeal by ONGC. The Commissioner of Income Tax (Appeals) passed a common order dated 15.04.2010 for the assessment years 2008-09 and 200910, in which, he held as under: "… Thus he accepts that the FBT might be payable on such CMRE but it is liable to tax in the hands of the employees also. No specific provision is pointed cut in support of this argument of the A.O. The agreement of the assessee that when perquisites are subjected to FBT it is not taxable perquisites is further supported by the amendment in clause (vi) of section 17(2) which specifically provides that the perquisites / fringe benefits are to be included in salary except those fringe benefits which are chargeable under Chapter XII H of the Act i.e. the provisions related to Incometax on fringe benefit as per section 115W to section 115WL. As the assessee has specifically shown that these two amounts i.e. CMRE and the reimbursement of cost of uniforms and washing expenses are included in the computation of fringe benefit tax return filed by the Co., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection that the perquisite was not in the nature of fringe benefit, but an additional tax. Such contention was negated. In any case, the Revenue has accepted the ONGC's treatment to this payment as fringe benefit and accepted tax from the employer on such basis in terms of chapterXIIH of the Act, Revenue now cannot change its stand and seek to tax the same amount in the hands of the employees which would be a clear case of double taxation. 19. In case of S. R. Koshti (supra), Division Bench of this Court held that every assessment of tax even due to mistake of the assessee can be corrected in exercise of revisional powers by the Commissioner by making following observations: "20. The position is, therefore, that, regardless of whether the revised return was filed or not, once an assessee is in a position to show that the assessee has been overassessed under the provisions of the Act, regardless of whether the overassessment is as a result of assessee's own mistake or otherwise, the Commissioner has the power to correct such an assessment under Section 264(1) of the Act. If the Commissioner refuses to give relief to the assessee, in such circumstances, he would be acting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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